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Amicus Briefs with Which the Court Has Been Showered

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Amicus Briefs with Which the Court Has Been Showered NO. 19-7 In The Supreme Court of the United States _________ SEILA LAW LLC, Petitioner, v. CONSUMER FINANCIAL PROTECTION BUREAU, Respondent. ________________________ On Writ of Certiorari To the United States Court of Appeals For the Ninth Circuit _________________________ BRIEF OF AMICI CURIAE U.S. SENATORS SHELDON WHITEHOUSE, RICHARD BLUMENTHAL, AND MAZIE HIRONO IN SUPPORT OF COURT-APPOINTED AMICUS CURIAE STEPHEN D. SUSMAN Counsel of Record AMANDA BONN RAKIM H.D. BROOKS SUSMAN GODFREY L.L.P. 1301 SIXTH AVENUE, 32ND FLOOR NEW YORK, NY 10019-6023 [email protected] [email protected] Counsel for Amici Curiae JANUARY 22, 2020 i TABLE OF CONTENTS TABLE OF AUTHORITIES ....................................... ii INTEREST OF AMICI CURIAE ................................ 1 SUMMARY OF ARGUMENT .................................... 1 ARGUMENT ............................................................... 2 I. Congress Sought To Immunize The CFPB From The Very Influences That Now Seek To Undermine Nearly A Century Of Administrative Law. ..................... 2 II. This Challenge Is The Product Of A Long-Term Effort By Regulated Industries To Hobble Independent Agencies. ......................................................... 12 CONCLUSION .......................................................... 23 APPENDIX A ............................................................ 1a ii TABLE OF AUTHORITIES Page(s) Cases Bowsher v. Synar 478 U.S. 714 (1986) ............................................. 14 Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010) ............................................... 3 Franchise Tax Bd. v. Hyatt, 139 S. Ct. 1485 (2019) ......................................... 20 Janus v. Am. Fed’n of State, Cty., & Mun. Emps., 138 S.Ct. 2448 (2018) .................................... 19, 20 John Doe No. 1 v. Reed, 561 U.S. 186 (2010) ............................................... 9 Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384 (1993) ............................................. 20 Marshall v. Baltimore & Ohio R.R. Co., 57 U.S. 314 (1853) ................................................. 8 McCutcheon v. Fed. Elec. Comm’n, 572 U.S. 185 (2014) ............................................... 9 Myers v. United States, 272 U.S. 52 (1926) ................................................. 7 iii PHH Corp. v. C.F.P.B., 881 F.3d 75 (D.C. Cir. 2018) ........................... 6, 10 Standard Oil Co. of New Jersey v. Lee, 221 U.S. 1 (1901) ................................................... 6 Case Materials Brief of Amici Curiae CFPB Separation of Powers Scholars, Consumer Financial Protection Bureau v. All American Check Cashing, Inc., No. 18-60302 (5th Cir. 2018) ................................. 7 Tr. of Oral Arg., Bowsher v. Synar, 478 U.S. 714 (1986) (No. 85-1377) ............................................ 14 Statutes H.J. Res. 111, Pub. L. No. 115-74, 123 Stat. 1243 (2017) ................................................... 9 S.J. Res. 57 Pub. L. No. 115-73, 132 Stat. 1290 (May 21, 2018) ..................................... 9 72 Stat. 415 (codified at 28 U.S.C. § 1332(c)) ................................................................... 8 Rules Supreme Court Rule 37.6 ............................... 1, 16, 19 Treatises 2 AM. Jur. 2d Admin. Law § 384 (2019) .................. 10 iv Articles Robert Barnes & Steven Mufson, White House Counts on Kavanaugh in Battle Against ‘Administrative State’, WASH. POST (Aug. 12, 2018). ................ 9, 18 Mary Bottari, Behind Janus: Documents Reveal Decade-Long Plot to Kill Public- Sector Unions, IN THESE TIMES (Feb. 22, 2019) ............................................................... 19 William W. Buzbee et. al., Independent Agencies: How Independent is Too Independent? The Federalist Soc’y Nat’l Lawyers’ Convention (Nov. 2018) ...................................... 17 Zechariah Chafee, Jr., Freedom of Speech in War Time, 32 HARV. L. REV. 932 (1919) ................................ 11 Eamonn K. Moran, Wall Street Meets Main Street: Understanding the Financial Crisis, 13 N. C. BANKING INST. 5 (2009) .......................... 22 Brianne Gorod, Symposium: Why Kisor Is a Case to Watch, SCOTUS BLOG (Jan. 31, 2019).............................. 4 v Luke Hartig, Trump’s Four-Pronged War on the Administrative State, JUST SECURITY (Feb. 7, 2018) .............................. 12 Richard L. Hasen, The Decade of Citizens United, SLATE (Dec. 19, 2019) ....................................................... 3 Amanda Hollis-Brusky, Helping Ideas Have Consequences: Political and Intellectual Investment in the Unitary Executive Theory, 1981-2000, 89 DENV. U. L. REV. 197 (2011) ........................... 13 Gillian E. Metzger, Foreword: 1930s Redux: The Administrative State Under Siege, 131 HARV. L. REV. 1 (2017) .................................. 22 Frank Newport, Americans Want Government to Do More on Environment, GALLUP NEWS (Mar. 29, 2018) .............................. 3 Robert O’Harrow Jr. & Shawn Boburg, A Conservative Activist’s Behind-the- Scenes Campaign to Remake the Nation’s Courts, WASH. POST (May 21, 2019) ................................ 16 vi Lucinda Shen, Donald Trump is Targeting an Agency That Has Recovered $11.8 Billion for Consumers, FORTUNE (Jan. 27, 2017) ....................................... 4 Laurence Silberman, Panel I: Agency Autonomy and the Unitary Executive, 68 WASH. U.L.Q. 495 (1990) ................................ 16 Ann Southworth, Lawyers and the Conservative Counterrevolution, 43 LAW & SOC. INQUIRY 1698 (2018) ................... 15 Cass R. Sunstein & Adrian Vermuele, The Unbearable Rightness of Auer, 84 UNIV. CHI. L. REV. 297 (2016) ........................... 3 Cass R. Sunstein, Myth of the Unitary Executive, The Docket: Proceedings from the Administrative Conference of the United States, 7 ADMIN. L. REV. 299 (1993) .................................. 7 Mark Joseph Stern, What the Koch Brothers’ Money Buys, SLATE (May 2, 2018) .................................. 12 Jason Zengerle, How the Trump Administration is Remaking the Courts, N.Y. TIMES (Aug. 22, 2018) ..................... 18 vii Books JEFFERSON DECKER, THE OTHER RIGHTS REVOLUTION: CONSERVATIVE LAWYERS AND THE REMAKING OF AMERICAN GOVERNMENT (2016) ............................................ 13 CHARLES FRIED, ORDER AND LAW: ARGUING THE REAGAN REVOLUTION—A FIRSTHAND ACCOUNT (1991) ................................................... 13 BRINK LINDSEY & STEVEN M. TELES, THE CAPTURED ECONOMY: HOW THE POWERFUL ENRICH THEMSELVES, SLOW DOWN GROWTH, AND INCREASE INEQUALITY (2017) ................................................. 5 JANE MAYER, DARK MONEY: THE HIDDEN HISTORY OF THE BILLIONAIRES BEHIND THE RISE OF THE RADICAL RIGHT (2016) .......................................................... 5 NANCY MACLEAN, DEMOCRACY IN CHAINS (2017) ............................. 15 SHAWN OTTO, THE WAR ON SCIENCE (Milkweed Eds. 2016) .......................................... 11 Reports CONGRESSIONAL RESEARCH SERVICE, CONGRESS’S AUTHORITY TO INFLUENCE AND CONTROL EXECUTIVE BRANCH AGENCIES (Dec. 19, 2018) ...................... 10 viii CONSUMER FINANCIAL PROTECTION BUREAU, THE OFFICE OF SERVICEMEMBER AFFAIRS: CHARTING OUR COURSE THROUGH THE MILITARY LIFECYCLE (May 2017) ............................................................. 5 FIN. CRISIS INQUIRY COMM’N, THE FINANCIAL CRISIS INQUIRY REPORT: FINAL REPORT OF THE NATIONAL COMMISSION ON THE CAUSES OF THE FINANCIAL AND ECONOMIC CRISIS IN THE UNITED STATES (2011)......................................................... 6 2017 Annual Report, The Federalist Soc’y for L. & Pub. Policy Studies, (Jan. 21, 2020 4:30 PM), https://fedsoc.org/commentary/public ations/annual-report-2017 .................................. 2a 2018 Annual Report, Sarah Scaife Foundation (Jan. 21, 2020 4:55 PM), http://www.scaife.com/2018_Sarah% 20Scaife%20Foundation_Annual%20 Report.pdf ............................................................ 5a ix Other Authorities Adolph Coors Foundation 2015 IRS Form 990, GuideStar (Jan. 21, 2020 4:30 PM), https://pdf.guidestar.org/PDF_Image s/2016/510/172/2016-510172279- 0d99d557-F.pdf .................................................... 4a 2018 Year in Review, The Lynde & Hary Bradley Foundation (Jan. 21, 2020 4:55 PM), https://cdn2.hubspot.net/ hubfs/4152914/2018_YearReview_Br adleyFdn.pdf ........................................................ 4a Charles Koch Foundation, 2018 IRS Form 990, BKD LLP (Jan. 21, 2020 4:50 PM) https://mk0bahufale3skgkthdo. kinstacdn.com/wp- content/uploads/2019/11/990-CKF- 2018.pdf................................................................ 4a Deep Dive Episode 23 – En Banc D. C. Circuit Upholds CFPB Constitutionality, THE REGULATORY TRANSPARENCY PROJECT (Feb. 5, 2018) ........................................ 17 Donors Trust (Jan. 21, 2020 4:30 PM), https://www.sourcewatch.org/index.p hp?title=DonorsTrust .......................................... 2a x Andrew Jackson, Veto Message Regarding the Bank of the United States (July 10, 1832), in A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS, 1789-1897 (James D. Richardson ed., Washington Gov’t Printing Office 1896) ....................................................................... 8 Hon. Brett M. Kavanaugh, Panel: Federal Courts and Public Policy, American Enterprise Institute (Mar. 31, 2016) ..................................... 17 ASHLEY KIRZINGER ET AL., KAISER HEALTH TRACKING POLL – LATE APRIL 2017: THE
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